In re L.L.

508 P.3d 1278

In the MATTER OF L.L., a Minor Child, BY AND THROUGH Next Friends C.W. and T.W., Grandparents, Appellants, and D.L. and A.W., Natural Parents, Appellees.

No. 122,294

Supreme Court of Kansas.

Opinion filed May 6, 2022.

Linus L. Baker, of Stilwell, was on the brief for appellant.

No brief filed by appellees.

The opinion of the court was delivered by Wilson, J.:

C.W. and T.W. filed a "Petition for Determination of Paternity and Grandparent Rights" both as next friends of their granddaughter, L.L., and in their personal capacities. They named their daughter, A.W., who is L.L.'s mother, as a respondent in the lawsuit. D.L., who is listed on L.L.'s birth certificate as her father, is also a respondent.

This case presents a parentage issue intertwined with the enforceability of a purported "co-parenting agreement." Grandparents filed their petition along with an emergency motion for temporary order of custody. The district court granted a temporary order of custody—which eventually became the final order of the court—giving sole custody to Mother. But the district court refused to adopt as its order a contractual "co-parenting agreement" signed by Mother and Grandparents which provided—among other things—that Grandparents would share "joint legal custody" over L.L. The district court found it had no legal authority to do so.

The sole issue on appeal is whether Grandparents may pursue—and if so, enforce—their claim that Mother has agreed to "[share] her rights and obligations as a parent with the [Grandparents]" such that "this co-parenting arrangement may not be terminated or otherwise revoked by either party" unless there is a judicial finding that Grandparents "are unfit co-parents." While Grandparents had standing to file the original petition, the current posture of the case leaves them without standing in their personal capacities. Their appeal is dismissed.

FACTS AND PROCEDURAL BACKGROUND

L.L. was born in 2011 to Mother. At the time of L.L.'s birth, Mother was not married to Father and the two parents eventually separated. Seven years later, Mother took L.L. to spend the holidays with Father at his home in Arizona. Father assured Mother that he would fly L.L. back to Kansas before school started in January. He did not. Instead, Father refused to return L.L. to Kansas and insisted on keeping her in Arizona.

Within days, Grandparents initiated this case as next friends of L.L. and in their personal capacities by filing a "Petition for Determination of Paternity and Grandparent Rights," asking the court to order: (1) that L.L. is the natural daughter of Mother; (2) custody and the immediate return of L.L. to Kansas; (3) grandparent visitation; (4) legal and physical custody to Mother and Grandparents, with primary residence at Grandparents' home; (5) child support; and (6) "such other orders as the Court may deem just and necessary" and in L.L.'s best interests. At the same time, an "Emergency Motion for Temporary Order of Custody" was filed on behalf of all three named petitioners—with Mother's consent—seeking (1) a temporary order granting "sole physical and legal custody" of L.L. to "petitioners" and Mother; (2) an order for the immediate return of L.L. to Kansas; and (3) such other relief as necessary in L.L.'s best interests.

Shortly thereafter, the district court found it had personal and subject matter jurisdiction of L.L., Grandparents, and Mother. The court also found that Mother was L.L.'s natural mother, that Grandparents were L.L.'s biological grandparents, and that Kansas was L.L.'s home state. The court entered temporary orders that Mother would have sole legal and physical custody of L.L. and that Mother could bring L.L. back to Kansas. The temporary order did not make any additional determination regarding visitation, child support, grandparent visitation, or medical care.

Though Father had previously in the proceedings appeared by phone, he failed to appear for the second hearing, during which the district court intended to address the temporary orders of custody. Grandparents appeared and asked the court to grant their motion to adopt a "co-parenting agreement" they had executed with Mother. The written agreement provided, among other things:

"By this agreement the parties shall have joint legal custody of the Child with residential custody of the Child to be with the [Grandparents].

"[Mother] is sharing her rights and obligations as a parent with the [Grandparents] and by this agreement [Mother ] is not abdicating her duties and responsibilities as a parent; she is sharing those rights, responsibilities, and duties with the [Grandparents ] individually and jointly.

"[Grandparents] also believe the child can obtain health and educational benefits upon an agreement with [Mother ] to share her legal rights to custody and control of the child with the [Grandparents ].

"The parties agree to cooperate with each other to enforce this agreement and particularly in regards to [Father ] attempting to interject himself back into the life of the child against all parties' wishes .

"[Mother and Grandparents] are of sound mind and under no undue restraint or duress. They have read the agreement and understand it as a free and voluntary act. The parties agree that this co-parenting arrangement may not be terminated or otherwise revoked by either party unless the court in ... 19CV296 or any other court with jurisdiction makes a judicial finding that the [Grandparents ] are unfit co-parents. " (Emphases added.)

After considerable relevant legal analysis, the district court found that the Constitution, law, and public policy did not allow the court to adopt the agreement and that joint legal custody is only between parents and not between a parent and grandparents. It also found that the agreement did not fit within grandparent visitation rights, as they are a creature of statute and are required to be strictly construed. But the court encouraged Grandparents to consider achieving their goal of ensuring they remain in L.L.'s life by pursuing their right to grandparent visitation as defined by statute.

After the court's order, Grandparents requested a factual finding that Mother explicitly waived her parental preference rights. At a hearing on that motion, all parties (including Father) participated. Father advised the court that he intended to pursue residential placement of L.L. to live with him in Arizona.

Ultimately, the district court found that Grandparents were asking it to allow only one of L.L.'s two known parents to irrevocably contract away or share legal custody with Grandparents without declaring them parents for the blatant and explicit purpose of forming a joint defense against Father's assertion of his fundamental constitutional custodial rights to L.L. The district court again found that it was without legal authority to adopt the agreement, that it violated the constitutional rights of Father, and that it was not in the best interests of L.L. to adopt the agreement. The district court also declined to make any finding that Mother had waived her parental preference. It again brought up the grandparent visitation rights to which Grandparents might be entitled.

In response, Grandparents amended the petition to remove their request for grandparent visitation altogether. Grandparents also asked the district court to direct entry of a final judgment, which would allow them to immediately appeal its refusal to adopt the "co-parenting agreement." The district court again refused, finding that many of the issues most impactful for L.L. had yet to be finalized.

Months later, the court held a status conference. Father did not appear. Mother appeared pro se, and counsel for petitioners appeared. Mother advised the court that she and L.L. had moved to Iowa with the intent to reside there and not return to Kansas. At the end of the hearing, the court found it to be in the best interests of L.L. to finalize its temporary orders granting sole legal and residential custody to Mother.

Grandparents appealed all judgments of the district court "in order to appeal the denial of the enforcement of the contract called the co-parenting agreement," but the Court of Appeals panel found they did not have standing to seek the only relief they requested on appeal and dismissed the appeal for lack of jurisdiction. In re L.L. , No. 122,294, 2021 WL 1433234, at *7 (Kan. App. 2021) (unpublished opinion).

ANALYSIS

GRANDPARENTS DO NOT HAVE STANDING TO PURSUE THEIR CLAIM FOR SHARED LEGAL AND RESIDENTIAL CUSTODY OF L.L .

1. Standard of review

We first consider whether Grandparents have standing. While standing is a requirement for case-or-controversy, it is also a component of subject matter jurisdiction that may be raised at any time. The question of standing is one of law over which this court has unlimited review. Gannon v. State , 298 Kan. 1107, 1122, 319 P.3d 1196 (2014).

2. Discussion

The Kansas Constitution imposes a case-or-controversy requirement, part of which includes standing, or "a party's right to make a legal claim or seek judicial enforcement of a duty or a right." In re Adoption of T.M.M.H. , 307 Kan. 902, 908, 416 P.3d 999 (2018) (citing KNEA v. State , 305 Kan. 739, 746, 387 P.3d 795 [2017] ). Standing is one of the most amorphous concepts in the entire domain of public law, but if a person does not have standing to challenge an action or to request a particular type of relief, then "there is no justiciable case or controversy," and that person's suit must be dismissed. Otherwise, when a person who does not have standing to file suit asks for relief, it is akin to a request for an advisory opinion. Board of Sumner County Comm'rs v. Bremby , 286 Kan. 745, 750, 189 P.3d 494 (2008).

Because the claims in this case appear to have changed over time, we articulate what Grandparents have specifically stated they do not claim in their petition for review to this court. First, they have dismissed their cause of action for...